Tag Archive for FOI

WhatDoTheyKnow About Refusing Requests?

FOIMan reviews refusal notices issued via the WhatDoTheyKnow.com website.

FOI is all about transparency. Most of the time that is demonstrated by disclosing requested information. On occasion though, public authorities have to refuse requests, and where this is the case, transparency should extend to the reasons why the requested information cannot be disclosed.

The Act itself (and the Environmental Information Regulations as well) sets out the requirement to issue a notice explaining the refusal and what must be included in it. Not surprisingly, the Information Commissioner has provided guidance over the years on how this obligation ought to be met as well.

Public authorities should therefore have a pretty clear idea of what to tell applicants when they refuse requests. Well, perhaps…

In my latest article for PDP’s FOI Journal, I examine 250 responses to requests made via the WhatDoTheyKnow.com website. Unfortunately I find that many responses leave a lot to be desired. You can read the article here.

Local Authority Meetings & Secrecy

FOIMan clarifies the relationship between FOI and local authority meeting rules.

Following the awful tragedy that unfolded at Grenfell Tower, there have been a lot of questions asked of the local council, the Royal Borough of Kensington and Chelsea (RBKC). Yesterday (29 June 2017) the council held a Cabinet meeting which began and ended in controversial circumstances. I was subsequently asked by a follower on Twitter about the relationship between FOI and attendance at council meetings.

The short answer is that there is none. FOI gives a right of access to information held by public authorities. It doesn’t regulate access to meetings.

The longer and more helpful answer is that FOI forms part of a range of legal requirements that ensure that local authorities like RBKC are accountable. I’ve written previously about transparency rules in local government. In relation to meetings of the RBKC cabinet, the Local Authorities (Executive Arrangements) (Meetings and Access to Information) (England) Regulations 2012 are, I believe, the relevant rules. I won’t go into whether RBKC were entitled to exclude the media from the meeting in this case as a) I don’t claim to be an expert in this area, and b) it’s already been dealt with by a legal ruling which ruled that the Press had to be admitted. But if you’re interested in what the rules are, the regulations I mention above may be of interest to you.

From my point of view, one of the most interesting issues is that RBKC are the latest organisation to discover that the perception of secrecy can be just as damaging, if not more so, as the revelation of embarrassing information (interestingly a theme explored by Dr Ben Worthy in his recent book on The Politics of FOI, which I thoroughly recommend). As one MP in their maiden speech said:

The public has the right…to know what its elected representatives are doing…Publicity is the greatest and most effective check against any arbitrary action.

The MP was Margaret Thatcher, and she said this in 1960 in support of a Bill to allow the Press to attend council meetings.

(HT to Alan Travis of The Guardian – @alantravis40 – for providing the quote above from Hansard in a Tweet yesterday)

Same thing, different gravy? The EIRs Part II

FOIMan examines the similarities and differences between FOIA and the Environmental Information Regulations.

A few months ago I started a series in PDP’s Freedom of Information Journal on the Environmental Information Regulations (EIRs), starting with an examination of the definition of environmental information. Here I bring you the second instalment in the series which looks at how FOIA and the EIRs differ.

I’ve just written the third and final part in the series which covers the exceptions in the EIRs. You’ll be able to read that in the next issue of the journal or right here on the FOIMan site later in the summer. Once they’re all available, I’ll put them all in one place in the Resources section so they will act as a comprehensive guide to the EIRs.

University FOI Stats 2016

FOIMan reviews JISC’s latest report on FOI in higher education.

There aren’t that many sources of information on FOI performance. Central government of course publishes statistics on its own compliance, but outside of Whitehall, the availability of statistics on how public bodies apply FOI is ironically pretty limited. If you want to know more about sources for FOI statistics, I wrote about it for the FOI Journal last year. One of the sectors that does publish information every year is the higher education sector.

Every year, JISC, the higher education information and research body, conducts a survey of universities on their experiences with FOI, EIR and data protection subject access requests. The data is collated into handy charts which are made available online and can be downloaded in reusable form for further number crunching. It always provides quite a detailed insight into FOI handling and this year’s is no different.

Amongst the highlights of this year’s report:

  • universities received an average of 264 requests (mostly – 232 – FOI requests) in 2016 – after a drop last year, requests were up 10%;
  • 51% of requests were granted in full – 17% were partly fulfilled;
  • only 9% were fully withheld due to exemptions;
  • most requests (27%) were about “student issues”;
  • journalists were the most common type of requester – 23% (though it should be noted that 22% of requesters were not identified);
  • only 4% were not answered within 20 working days;
  • the most time-consuming parts of handling an FOI request were “locating and accessing information”, “reviewing information” and “considering exemptions”.

We have to remember that these figures are self-reported and the survey is voluntary – many universities didn’t report at all. However, what we do have is some very useful data on how FOI is working in these public bodies.

Although JISC introduce the report by commenting that the rise in FOI requests represents a “seven-fold increase” since reporting began in 2005, it should be noted that this started from a very low base. Most local authorities would kill to have FOI request rates as low as 232.

Despite the common complaint about FOI requests from IT companies trying to get hold of procurement intelligence, only 7% of requests are about procurement (though its possible these requests were counted in the 9% of requests about IT provision). Only 13% of requests are recorded as coming from “commercial organisations”.

A note on use of exemptions. There was quite a bit of commentary when the Institute for Government published a report last month suggesting that the government’s stats indicated that government departments were becoming less open as they were using more exemptions, and failing to meet deadlines more often. There’s nothing to suggest this is a problem in Higher Education in JISC’s stats, and in any case I’m not at all sure that you can make that conclusion from raw statistics. After 12 years of FOI, it may just be that government departments have already disclosed all the “low-hanging fruit”, and that what remains now are the difficult cases that are more likely to be refused or take longer to answer. What’s really needed if we want to understand changing attitudes to FOI in public bodies is research involving a qualitative analysis of the types of requests being refused – are they the ones that would have been answered in the early days of FOI? Or are the questions being asked more challenging these days? One for the academics in our higher education institutions. Statistics are helpful, but they only provide part of the picture.

If public authorities want tips on how to improve their performance under FOI, just a reminder that you can join me for one of my training courses on FOI for Act Now Training, starting with an intensive look at the FOI Exemptions on 24 April in London. Details on the Act Now Training website.

FOIMan’s Q&As: how many emails?

If a request asks for the number of emails sent by a public body, should it exclude emails that relate to personal or political matters?

Section 3(2) of FOIA says:

For the purposes of this Act, information is held by a public authority if—

(a)it is held by the authority, otherwise than on behalf of another person, or

(b)it is held by another person on behalf of the authority.

Where it says “otherwise than on behalf of another person”, s.3(2)(a) is usually interpreted to mean that emails sent or received in a personal capacity, or party political emails sent or received by politicians and their advisors, will not be held by a public authority. A decision that illustrates this interpretation is Montague v IC & Liverpool John Moores University (EA/2012/0109, 13 December 2012).

However, if someone asks for the number of emails sent or received by a particular individual at a public body, it will not be appropriate to exclude personal or political emails from total figures on the basis that the information is not held. This is discussed in Lotz v IC & DWP (EA/2016/0150, January 2017) at para 29:

There is a distinction between the content of a personal or political email sent from a DWP email account and the fact that one has been sent which might reflect upon the use of resources within the DWP (within the Act) rather than the content of the emails (which is not).

As the decision goes on to say, it might be appropriate to withhold such information if an exemption applies, for example the exemption for personal data at s.40(2). But for the purposes of FOI, the number of emails on a public body’s email server will be information held, whatever the nature of those emails’ content.

Source: Lotz v IC & DWP (EA/2016/0150, January 2017) at para 29